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Legal process of transitioning into adult social care services: protected parties

For Children’s Mental Health Week 2025, we review the transition from children’s social care services to adult social care services for young adults who are vulnerable and lack mental capacity to conduct litigation on their own.

Applications to the Court of Protection

For adults who lack mental capacity to make their own decisions and are not subject to the Deprivation of Liberty Safeguards, the Court of Protection reviews and authorises any provision that may restrict one’s liberty. In these circumstances the Court can use what is called a Re X procedure – a streamlined procedure to make decisions based on documents rather than requiring a full hearing. This procedure speeds up the process and minimises costs for both the Court and statutory bodies.

The relevant Local Authority will need to make an application to the Court of Protection, supported by a mental capacity assessment, a care plan, and outline the proposed restrictions.

However in the case of Bolton Council v KL [2022] EWCOP 24, Her Honour Judge Hilder focussed on the difficulties faced by 16 and 17-year-olds during this transition, determining that a more thorough approach is often needed when considering deprivation of liberty of young adults. Her Honour Judge Hilder concluded that cases involving the transition of a young person to adult services are not suitable for the streamlined procedure due to their complexity.

Deprivation of liberty

There are 3 conditions to establish whether deprivation of liberty arises: someone is under continued supervision and control, not free to leave, and lacks capacity to consent to these arrangements (Cheshire West and Chester Council v P [2011] EWCA Civ 1257).

Children may be deprived of their liberty at home or in a residential or supported living placement or school. The Court of Protection may also be engaged in cases where children have been detained under the Mental Health Act 1983 and upon discharge are transitioning to placement where they will be deprived of their liberty.
Transition from child to adult services

The Children Act 2004 requires local authorities to protect children in need, such as by providing necessary services to promote their well-being. This applies to all children including those who are a ‘looked after child’ pursuant to section 20 of the Children Act 1989.

Transition from chid to adult services can be complex. It can be particularly difficult for those individuals with autism, learning disabilities and other needs who may lack capacity. To ensure a smooth transition process it is important that the process is person-centred.

Vulnerable children need ongoing support in adulthood; and the relevant local authorities and health organisations involved in their care must use a joined-up approach to ensure a smooth handover to adult social care services to maintain the continuity of protection and support systems in place. The Court of Protection should be engaged before the young person turns 18 to ensure that this happens.

Wishes and feelings

Vulnerable young adult’s needs, wishes and feelings should not be ignored or lost in the process when the care responsibilities change from one department to another. Best endeavours should be used to try to obtain the young person’s wishes and feelings, and this may include using creative ways of communication such as Makaton, symbols, pictorial representations and seeking the support of family, carers and the young person’s school.

Education

Education is usually a relevant factor in the transition from child to adult services in particular for those people who are subject to an Education, Health and Care Plan (EHCP). It is important that consideration is given to whether the young person’s EHCP should be ceased or whether they are entitled to post-18 education pursuant to s45 of the Children’s and Families Act 2014. Although the Court of Protection cannot order a local authority to maintain a young person’s EHCP the existence of an EHCP may have an impact on the young person’s residence options as it may be in their best interests to reside at a residential college or close to educational provision.

Questions

For more information about health and welfare matters at the Court of Protection, please contact Sheryl Chan.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.